The Supreme Court of Canada is likely to hear two landmark cases with the notwithstanding clause at their centre within a one-year period.Sean Kilpatrick/The Canadian Press
Candice Telfer is a partner at Aird & Berlis LLP and the leader of the firm’s Indigenous Practice Group.
Since the Canadian Charter of Rights and Freedoms came into force in 1982, Canadians have, from time to time, picked up the continuing debate about its perhaps most controversial provision: Section 33, otherwise known as the notwithstanding clause. This usually happens when a government (usually provincial) threatens, or in more recent years invokes, the notwithstanding clause to pass legislation it knows is vulnerable to Charter challenge. This is what the notwithstanding clause does: It allows governments to pass a law notwithstanding any infringement that law may have on certain protected Charter rights and freedoms.
Quebec has long relied on the notwithstanding clause to protect the French language in that province. However, the debate has escalated at an alarming rate in recent years as other provinces – most publicly Alberta, Saskatchewan and Ontario – have used or threatened to use it to advance a variety of political priorities. And now, in a one-year period, the Supreme Court of Canada is likely to hear two landmark cases with the notwithstanding clause at their centre.
In March, the Court heard arguments in a rare four-day hearing on the challenge to Quebec’s use of the notwithstanding clause to shield its law prohibiting civil servants from wearing religious symbols while performing their public duties. And the Court will be hearing (likely early in the new year) another case challenging Saskatchewan’s law requiring schools to get parental consent to use students’ preferred names and pronouns.
With all this public attention, it is easy to think of the notwithstanding clause as a stand-alone, disconnected part of the Charter that many wish did not exist, and many others think of as a necessary balance. It seems like an island on its own, in a sea of liberal (or “woke”) rights protections, standing up for governments’ ability to meet their political mandates. But this represents a complete misunderstanding of the notwithstanding clause and the Charter, and how the Charter functions as a whole. In particular, it misses the decoder ring to understanding how the Charter works and the role the notwithstanding clause plays: Section 1.
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The first right protected in the Charter is actually the right of governments in Canada to infringe on our Charter rights and freedoms, provided they can justify doing so. Section 1 of the Charter guarantees the listed rights and freedoms subject to limitations in laws that are reasonable and can be “demonstrably justified in a free and democratic society.” What this means is that a government – provincial or federal – can pass a law that infringes on our rights provided it is prepared to demonstrate it is advancing a policy or outcome that is in the public interest, or for the public good. This is a high bar, but by no means insurmountable. In fact, courts regularly find that Charter infringements are justified under Section 1.
How can this document that is meant to codify our most basic and foundational rights and freedoms start by seemingly undermining its own purpose?
This is the second fundamental thing you have to understand about the Charter: It was not, unlike other bills of rights, the starting point of a new constitution, or a break with a previous legal order. It was one step along Canada’s constitutional evolution, building on a couple of centuries of constitutional documents, political structuring and restructuring, and – most importantly – the long history and traditions of the British common law.
The Canadian Charter of Rights and Freedoms came into force in 1982.Government of Canada
As a union of the less fractious British colonies in what would become North America, the colonial structures of Canada and its eventual provinces inherited the British parliamentary system and the British principle of parliamentary supremacy. This is the idea that democratically elected parliaments or legislatures hold full and final legal authority.
Now, Canada’s system of parliamentary supremacy has never been in fact quite supreme, because of our federal nature. The need for clearly defined areas of jurisdiction assigned to different legislatures meant that, from the get-go, parliamentary supremacy has been tempered by the documents that provide the jurisdictional guardrails – and the courts needed to adjudicate disputes about those guardrails. Nevertheless, the fundamental notion inherited from Great Britain of the legislature as being authorized and empowered through a democratic mandate to act on our behalf and in the public good has always been a part of our system.
Hence, Section 1 and the first right that is protected in the Charter being the governments’ right to justifiably infringe our rights. Practically, this means that if you think a government has infringed your Charter rights, you can take the government to court. But you need to understand that the government always gets the opportunity to prove that any infringement, if there was one, was justified. Charter litigation is a two-step dance, with the claimant leading on the infringement step and the government leading on justification.
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This also means that Canadian governments – federal and provincial – have become very adept at “stress testing” their laws before they are passed. Teams of government lawyers review legislative proposals and drafts for legal compliance, including whether they risk infringing the Charter, and whether any infringements can be justified. This is a long-standing and institutionalized part of the work of the public service and we should be glad of it. It means that when court cases are brought, governments – if they are diligent and competent – have already worked through these questions. It certainly does not mean that the government will win. They often do not. But the effective administration of justice is served when governments are prepared and the questions and issues that actually come before the courts are real and complex, genuinely requiring court time and attention.
Governments also have the often-used ability to take bills to the highest courts in their jurisdictions – the Supreme Court for the federal government and the Courts of Appeal for each province – for legal opinions on their constitutionality. These “reference cases” are a vital and dynamic part of our body of constitutional law, and can forestall the need for litigation once the law in question has passed.
So, what does this all have to do with the notwithstanding clause? Section 33 is the bookend to Section 1 in the Charter. Section 33 provides governments with the ability to temporarily override some Charter rights without having to justify the infringement. The Supreme Court has previously found that courts do not have the authority to overturn the use of the notwithstanding clause provided it is properly invoked.
However, and this is what gets lost in the hyperbolic discussions on both sides of the debate, the structure of the notwithstanding clause and the Charter as a whole signal that this is and has always been an interim power. It is intended to provide the ability to temporarily address an immediate and pressing need. For example, it only applies to some Charter rights, it has a built in sunset of five years, and it requires express declaration in the legislation in which it is invoked of what Charter right or rights it is infringing.
The Charter – and indeed the Constitution of which it is just one part – must be read as a whole. You cannot read one provision in isolation. Reading the notwithstanding clause in light of, and not despite, Section 1, makes this interim nature of the provision clear. We have a complete code for the justification of the infringement of Charter rights. It is in fact the frame under which the rights and freedoms sit.
The legal test for justification under Section 1 involves a series of questions, the first two of which involve demonstrating that the government has a “pressing and substantial” reason for the infringement and that the infringing measure is rationally connected to that reason. Governments invoking the notwithstanding clause should have to be prepared to stand up in court and meet the same baseline standard. More importantly, they should be prepared to stand in a court of law and state on the record that the notwithstanding clause is being used as an interim measure and commit to doing the work necessary to either justify the infringing law or to revoke it.
This should not be an onerous burden on governments, if they have done the work. But it requires governments being reminded that the starting point is not the notwithstanding clause as a disconnected section of the Charter amounting to a get-out-of-jail-free card. Rather, it is part of the overall compact of the Charter, which balances that initial right of a government to act in what it legitimately believes to be in the public interest, as it is democratically mandated to do, with our fundamental rights and freedoms as individuals.
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The current trend of provincial governments invoking the notwithstanding clause as part of political rhetoric and to appease specific interests is not only worrying from a public policy perspective. It should worry us as a profound offence to our Constitution and our constitutional order. The point of the notwithstanding clause is not to let governments off the hook from doing the work of justification. The point is to provide an interim ability to do something that government feels is critically important for the public good while it determines whether it can justify that infringement in the long term.
The Supreme Court of Canada did not shy away from building the legal test for justification under Section 1. It should not shy away from requiring a baseline of a pressing and substantial reason, and a rational connection to that reason, for any law that invokes the notwithstanding clause. This is not judicial interference in the political realm. It is requiring that as part of the inquiry into whether the notwithstanding clause is properly invoked, the structure and purpose of the Charter be taken into account. It is not questioning the wisdom of a democratically elected government, it is requiring that government to act consistent with the overall structure of a bill of rights that already contains a mechanism to permit it to justifiably infringe rights.
And if the Court will not do it, we need to. The purpose of the sunset built into the notwithstanding clause was to ensure government uses of it have to withstand the court of public opinion through successive election cycles. We also need to hold governments to that. Regardless of where each of us might sit on the political spectrum, we need to hold governments to doing the work.